MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 6, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the Special Funds Conservation Committee (Special Funds) should be allowed the opportunity to obtain a consultant's opinion on the issue of the claimant's need for a right total knee replacement surgery.

The Workers' Compensation Law Judge (WCLJ) authorized right total knee replacement surgery based on the carrier's failure to obtain a consultant's report, and directed the carrier to pay for the surgery.

The Board Panel majority initially found that the WCLJ erroneously directed the carrier to pay for the claimant's total right knee replacement surgery. However, "in the interest of justice," the majority then rescinded the authorization for surgery, and found that Special Funds should be allowed the opportunity to obtain a consultant's report on the issue of the need for total right knee replacement surgery, as it will be liable for the cost of the surgery if the claimant should choose to undergo the surgery in the future.

The dissenting Board Panel member would find that Special Funds should be liable for the surgery without further opportunity to present medical evidence on the issue.

In her application for Mandatory Full Board Review filed with the Board on March 4, 2013, the claimant contends that the Special Funds should not be granted an opportunity to produce a consultant's report.

In its rebuttal, filed with the Board on April 2, 2013, the Special Funds contends that the issue of need for total right knee arthroplasty is premature, as there is no evidence that the claimant is pursuing the surgery or that the surgery is warranted. The Special Funds further contends that it should be granted the opportunity to obtain a consultant's report, as the Special Funds was prejudiced by the carrier's inaction with respect to the request for surgery, and the Special Funds has no recourse regarding the request for surgery because the surgery was authorized prior to its liability being established. The Special Funds also argues, in the alternative, that the carrier should be liable for the total right knee replacement and all subsequent treatment and awards due to the carrier's failure to properly administer the claim (i.e. obtain a consultant's report on the issue of need for surgery).

The carrier indicated that it takes no position on the claimant's application for Mandatory Full Board Review.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The case is established for a work-related injury to the claimant's right knee, resulting from an accident that occurred on May 24, 1998. By decision filed on March 10, 2000, the claimant was awarded a 10.00% schedule loss of use of the right leg, and the case was closed. At some point, the claimant moved to California.

The case remained dormant until April 8, 2011, when the claimant's treating physician submitted a form C-27(Medical Proof of Change in Condition in Support of Application for Reopening of Claim for Workers' Compensation Benefits) dated March 7, 2011, indicating that the claimant required a right total knee arthroplasty due to osteoarthritis in the claimant's right knee.

In response, the case was reopened and a hearing was scheduled for August 18, 2011, on the issues of authorization for treatment and further causally related disability.

During the August 18, 2011, hearing, the carrier raised the issue of Workers' Compensation Law (WCL) § 25-a, and the WCLJ directed the carrier to get a consultant's opinion on the issue of the claimant's need for right total knee replacement surgery, without prejudice to WCL § 25-a. The WCLJ gave the carrier until November 29, 2011, noting that the examination would need to be performed in California, where the claimant resided. The WCLJ found that if a consultant's report is not produced, a finding may be made that the carrier has waived the opportunity to submit a consultant's medical report. The WCLJ's findings were memorialized in a decision filed on August 24, 2011.

During a hearing on November 29, 2011, the claimant requested that since the carrier did not obtain a consultant's report as directed, the total right knee replacement surgery be authorized. The carrier's counsel indicated that he did not know if an examination with a consultant was scheduled, and that the case was on for WCL § 25-a. The Special Funds contended that the surgery should be payable by the carrier, because the carrier took no action in response to the surgery request. The WCLJ authorized the total right knee arthroplasty, as the carrier had failed to obtain a consultant's report, and directed that the carrier pay for the surgery. The carrier noted an objection on the record. The WCLJ's findings were memorialized in a decision filed on December 13, 2011.

The carrier filed an application for administrative review and the claimant filed a rebuttal.

By a WCLJ decision filed on March 9, 2012, the carrier was discharged and liability for the claim was transferred to the Special Funds pursuant to WCL § 25-a, effective April 8, 2009.

On October 12, 2012, the claimant's doctor submitted a form C-27 stating that the claimant needed one synvisc injection to the right knee due to right knee pain caused by severe osteoarthritis.

On June 3, 2013, a Pre-Certification for Surgery for the claimant's total right knee arthroplasty was submitted to the Board by a physician's assistant in the claimant's doctor's office.

The Special Funds' orthopedic consultant, Dr. Sharma, examined the claimant on July 22, 2013, and submitted a corresponding report on July 30, 2013. Dr. Sharma opined that neither medication nor orthosis will resolve the issues with the claimant's right knee and she should have a total knee replacement done on her right knee. Dr. Sharma opined that:

"The cause of [the Claimant's] injury was the work-related incident of May 24, 1998, while she was working as a flight attendant. Her disability status is that she is permanent and stationary; however, she does need this future medical care from the injury which she sustained in 1998."

LEGAL ANALYSIS

"The Special Disability Fund only has standing with respect to proceedings concerning claims for reimbursement against the fund, not for proceedings on claims for benefits against the employer, and it cannot relitigate elements of compensability" (Matter of McDonald v Water Tunnel Contrs., 51 AD3d 1151 [2008] [citations omitted]).

In the instant case, the claimant's treating doctor submitted a form C-27 on April 8, 2011, indicating that the claimant now requires a total right knee arthroplasty due to osteoarthritis in the her right knee. In response, the case was reopened and a hearing took place on August 18, 2011, where the WCLJ directed the carrier to submit a consultant's report by the next hearing which was being scheduled for November 29, 2011, and noted that the carrier raised WCL § 25-a. At the November 29, 2011, hearing, the carrier's representative did not know if an examination with a consultant had been scheduled. The WCLJ authorized the total right knee arthroplasty, as the carrier had failed to obtain a consultant's report, and found that the carrier would be liable for the surgery. Thereafter, by decision filed on March 9, 2012, the WCLJ discharged the carrier and transferred liability for the claim to the Special Funds pursuant to WCL § 25-a, effective April 8, 2009.

Since the issue regarding authorization for the claimant's surgery was addressed by the WCLJ prior to liability for the claim being transferred to the Special Funds, the Special Funds does not have any standing regarding that issue and is not entitled to obtain a consultant's report on the issue of the claimant's need for surgery (Matter of McDonald, id.).

Further, the Special Funds was present during the November 29, 2011, hearing and stated its position that the carrier should be liable for the surgery. However, the Special Funds did not request an opportunity to obtain a consultant's report or object to the authorization for surgery.

Lastly, the Special Funds obtained a consultant's report, wherein the consultant opined that the claimant required the requested surgery, making the issue now moot.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, the WCLJ properly authorized the claimant's total right knee replacement surgery, that the Special Funds was not entitled to obtain a consultant's report on the issue of need for surgery, and that Special Funds is liable for the cost of the surgery.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on December 13, 2011, is MODIFIED to find that the Special Funds was not entitled to obtain a consultant's report on the issue of need for surgery, and that Special Funds is liable for the cost of the surgery. No further action is planned by the Board at this time.